EMPLOYMENT CHECKS POLICY AND PROCEDURE

Transcription

1 EMPLOYMENT CHECKS POLICY AND PROCEDURE Summary This policy and procedure describes the underlying principles and procedure for undertaking employment checks. A clear policy and procedure for employment checks will support the health and safety of patients and staff and help contribute to high quality of patient care. The document applies to all prospective new employees, temporary workers (bank and agency), and existing staff members. This document includes the process for monitoring policy compliance. CONTENTS Section Page 1 Policy statement and Link to Strategy/Trust s Objectives 2 2 Purpose and scope 2 3 General principles 2 4 Roles and responsibilities 3 5 Types of checks required 5 6 Checking process during recruitment: prospective employees 5 7 Checking process during recruitment: bank workers 6 8 Checking process for temporary (agency) workers 6 9 Employment check 1: Verification of identity 6 10 Employment check 2: Right to work in the UK 8 11 Checking right to work in the UK during employment / bank 9 registration 12 Employment checks 3: Professional clinical registration and 9 qualifications including alert letters 13 Employment check 4: Employment history and reference check Employment check 5: Work Health Assessments Employment check 6: Criminal record and Barring Checks 14 Appendix 1 Monitoring tables for policy compliance 21 Appendix 2 Flowchart for the checking process during recruitment 25 Appendix 3 Agency worker compliance checklist 26 Appendix 4 List of acceptable documents for identity and right to work 27 checks Appendix 5 Checking document authenticity and validity 32 Appendix 6 Right to work in the UK and the immigration systems 36 Appendix 7 Policy Statement on the Recruitment of Ex Offenders 41 Appendix 8 Grid of posts and the level of DBS check required 42 Appendix 9 DBS Risk Assessment Form 44 Appendix 10 Regulated activity and barred lists definition 45 Page 1 of 47

2 1. POLICY STATEMENT AND LINK TO STRATEGY/TRUST S OBJECTIVES 1.1 Ensuring that satisfactory pre and post employment checks are undertaken will directly support the safety of patients and the quality of care they receive and the Trust s vision for excellence in all it does. 1.2 The Royal Marsden NHS Foundation Trust (hereinafter called The Trust) is committed to ensuring the highest standards of patient care and safety. This policy and procedure will support these principles by ensuring safe recruitment and employment practices that minimise any possible adverse risk to patient care and safety. 1.3 The policy and procedure complies with NHS Employers standards for employment checks. 1.4 All employment checks are made in compliance with the Data Protection Act Therefore employment checks are usually only made after a conditional offer of employment. 2. PURPOSE AND SCOPE 2.1 The purpose of the policy and procedure is to set out arrangements for employment checking which comply with NHS Employers standards for pre- and post employment checks. 2.2 The aim of the policy and procedure is to ensure that employment checks are completed fairly and promptly following best practice guidelines. 2.3 This policy and procedure apply to all employees of the Trust and to bank and agency workers. 2.4 The Trust believes in providing equity in its services, in treating people fairly with respect and dignity and in valuing diversity both as a provider of cancer and community health services and as an employer. These principles will be followed when applying this policy and procedure. 3. GENERAL PRINCIPLES 3.1 The Trust follows the NHS Employers Employment Check Standards in relation to the type of checks required before and during employment and/or before undertaking temporary work with the Trust. 3.2 Completion of the required checks to a satisfactory standard is a prerequisite of initial and ongoing employment/temporary work with the Trust. The Trust reserves the right to withdraw offers of employment or registration on the staff bank if checks have not been satisfactorily completed within four weeks of conditional offer despite several, recorded attempts. 3.3 For Trust employees and temporary workers (bank) the outcome of Right to work, professional clinical registration and criminal record checks will also be recorded on Page 2 of 47

3 the Electronic Staff Record (ESR) on appointment and monitored via ESR reports for rechecking as required. 3.4 For temporary workers (agency) an agency worker checklist is completed by the agency which confirms satisfactory employment checks have been undertaken. 3.5 Rechecking during employment may be required for right to work check, professional clinical registration and criminal records check, depending on the role that is undertaken. The same applies to ongoing registration with the Trust staff bank. If the required checks are not satisfactorily met by an employee of the Trust or bank worker the Trust s Disciplinary Policy and Procedure may be followed. For bank workers, further work will not be assigned until the matter is resolved and registration with the bank may be terminated. More information about following up those who fail to satisfy the checking requirements is detailed within each of the employment checks sections in this document. 4. ROLES AND RESPONSIBILITIES 4.1 Duties for making sure that all relevant employment checks are undertaken for all staff: Human Resources Ensuring employment checks procedures are in place, that they are accessible to all staff and are up to date with latest legislative requirements. Carrying out employment checks as outlined in the policy and procedure during the recruitment of new employees/bank workers and then during employment. Giving advice and support to managers, employees and prospective new employees on employment checks during the recruitment of new employees/ bank workers and then employment. Monitoring and receiving assurance that employment checks are being carried out by external agencies to the required standard. Monitoring the policy compliance of employment checks, developing recommendations and actions plans where appropriate and then implementing any subsequent changes. Regularly checking for updates on changes in process or legislation from third parties e.g. DBS, Home Office etc. in relation to employment checks and updating policies and procedure as appropriate. Recording and monitoring the outcome of employment checks, and keeping right to work information on existing employees accurate and up to date on ESR. Checking documents received at recruitment stage or from current staff members, validating the authenticity of the documents and then copying and storing them in central HR filing as per UK Visa and Immigration (UK) and NHS Employers requirements. Manager: Supporting Human Resources in carrying out employment checks as outlined in this policy and the accompanying procedure during recruitment of new employees: Page 3 of 47

4 o Checking and verifying relevant documents to satisfy the identity checks completed at interview o Identifying the level of criminal record and barring check required for posts in their establishment o Exploring gaps in employment history with the candidate at interview o Exploring relevance of any criminal convictions declared by the candidate at interview after taking advice from Human Resources o Offering employment verbally after selection subject to satisfactory preemployment checks o Checking that references are appropriate and then accepting or declining as satisfactory. When there are concerns discussing these with the recruitment team leader and then agreeing the next course of action o Seeking support and advice from Occupational Health Department in relation to occupational health checks as and when necessary o Remaining in contact with the prospective new employee during the employment check phase o Not allowing new members of staff or bank workers to start employment/undertake bank work or (in case of internal candidates) start in a new post before all required checks have been completed and formal confirmation of this has been received from Human Resources o During employment, following up those staff who fail to satisfy employment checks and taking appropriate action to ensure the safety of staff and patients Occupational Health Department is responsible for undertaking pre-employment health screening, where necessary and post-employment immunisation programmes and for providing specialist confidential advice to the employer and applicant. Employee / Bank worker: Informing their line manager of any criminal allegations, convictions or cautions they receive whilst employed with the Trust. In the case of bank workers, the bank worker should inform the Temporary Staffing Manager of any criminal allegations, convictions or cautions they receive whilst registered with the Trust bank. Informing their line manager of any changes to their immigration status, and if their employment is subject to a work permit/certificate of Sponsorship, maintaining the conditions of their immigration status (as defined by the UKVI). Promptly providing any documentation requested for employment checks prior to and during their employment/registration with staff bank. 4.2 The overall responsibility for this policy and procedure rests with the Director of Workforce. Page 4 of 47

5 5. TYPES OF CHECKS REQUIRED 5.1 The Trust follows the NHS Employers Employment Checks Standards in relation to the type of checks required before and during employment and/or before undertaking temporary work with the Trust, these are: 1. Identity checks (see section 9) 2. Right to work in the UK checks (section 10) 3. Professional clinical registration and qualification checks (including alert letters) (section 12) 4. Employment history and reference checks (section 13) 5. Work Health assessments (section 14) 6. Criminal Record and Barring checks (section 15) Directors must satisfy all the requirements set and be declared fit and proper persons. Individuals must be: of good character, have the necessary qualifications, competence, skills and experience for their role, have the appropriate level of physical and mental fitness, have not been party to any serious misconduct or mismanagement in the course of carrying on a regulated activity, and not be deemed unfit. For details on each check please see sections in this document as indicated above. Monitoring against this policy is detailed in Appendix CHECKING PROCESS DURING RECRUITMENT: PROSPECTIVE EMPLOYEES 6.1 The employment checking process for prospective employees/bank workers and then during employment/bank registration is detailed in Appendix Main principles: Following the recruitment and selection process, posts are offered subject to satisfactory completion of the employment checks listed in section 5 the level of check varies depending on the role being offered. Any offer of appointment may be withdrawn if the candidate knowingly withholds information, or provides false or misleading information. Employment may be terminated should this come to light once the candidate has started in post. Completed checks that contain information that contradicts the details provided by the candidate and raises concern are dealt with in a sensitive manner and on an individual basis. The Trust will endeavour to resolve any discrepancies with the candidate, however, the Trust reserves the right to report to or consult with appropriate external bodies such as the local police, UK Visa and Immigration Agency or NHS Counter Fraud and Security Management Services, as required. The recruiting manager must first discuss with the recruitment team leader any concerns should they wish to withdraw an offer of employment. The outcome of employment checks will be recorded on ESR. Page 5 of 47

6 7. CHECKING PROCESS DURING RECRUITMENT: BANK WORKERS 7.1 The checking process for bank workers follows the process set out in section 5. However, reference to employment / appointment is removed. Instead reference is made to registration on the staff bank. 8. CHECKING PROCESS FOR TEMPORARY (AGENCY) WORKERS 8.1 This section describes the process the Trust has adopted for monitoring/receiving assurance that the required employment checks, including professional clinical registration checks, are being carried out by all external agencies used by the organisation. 8.2 Agency workers are only used from agencies who have undertaken appropriate preemployment checks which are in line with this policy and procedure, i.e. Framework agencies. Where in exceptional circumstances non framework agencies have to be used to ensure patient safety and service provision assurance will be gained from the agency that pre and post employment checks are undertaken in line with this policy and procedure. All agencies that the Trust uses will be given a copy of this document and reminded that the Trust requires them to comply with these checks. 8.3 When an agency worker first undertakes work at the Trust the agency will be asked to forward a completed checklist see (Appendix 3) to confirm all pre-employment checks have been undertaken in line with this policy and procedure. The Trust requires the agency worker to bring a photographic ID on their first shift and show it to the shift manager so that it is confirmed that they are who they say they are. 8.4 The Human Resources Department will internally audit agency workers against the received agency worker checklists to ensure they have had the relevant preemployment checks. Where possible, as an additional source of assurance, the Trust will also request agencies to confirm that they follow the Trust policy on employment checks. 9. EMPLOYMENT CHECK 1: VERIFICATION OF IDENTITY 9.1 Verification of identity checks are designed to determine that the identity is genuine and relates to a real person, and establish that the individual owns and is rightfully using that identity. It should be the first check preformed as any other checks will be invalid if the person s identity cannot be proven. Identity checks are designed to: determine that the identity is genuine and relates to a real person establish that the individual owns and is rightfully using that identity. The process involves checking two elements of a person s identity: Attributable the evidence of a person s identity that they are given at birth (including their name, date and place of birth) and any subsequent change(s) of name. Biographical a person s personal history including education and qualifications, addresses, electoral register information and employment history. Page 6 of 47

7 9.2 For a list of acceptable documents see Appendix 4. Documents must be valid, current and original, and can be a combination of; Two forms of photographic personal identification and one document confirming their address; or One form of photographic personal identification and two documents confirming their address. The Trust uses three methods for verifying identity: receiving original documents checking document authenticity validating an individual s personal details against external reliable sources, including information held by previous employers (subject to the individual providing relevant consent that such information can be accessed). 9.3 Where individual's genuinely cannot provide original documentation, employers must make a risk based judgment against the job role being applied for and what documentary evidence they require to seek appropriate assurances. It is perfectly acceptable to require applicants to obtain official statements from banks or utility providers and these are easily obtainable on request. 9.4 For certain positions, where the element of risk is lower, employers may accept bank and utility documents which have been downloaded from the internet, where the applicant is able to access their internet account at a meeting with that employer. 9.5 Where identity documents have been provided in a foreign language, an independently verified translation must be obtained. Unless otherwise specified, for documents that are listed as UK on the approved lists, you must not accept a foreign equivalent of this document. 9.6 In all cases, a photocopy (or scanned copy) of each of the documents presented to you and retain these on file. All photocopies (or scanned copies) should be signed, dated and certified by the person taking the copy. 9.7 Where possible, identity documents should be scanned using the Trust ID document scanner. However, it is important to highlight that scanners are only an aid to detecting fraudulent documents and should not to be used in place of the manual checks outlined within this document. 9.8 Efforts will be made to check the authenticity of identity documents. When there are doubts on authenticity of information the recruitment team will escalate appropriately. In exceptional circumstances, the Trust may report concerns to the local police. For guidance on checking document authenticity and validity see Appendix5. Page 7 of 47

8 9.9 Who should have their identity checked and when? Identity checks should be undertaken on all prospective employees (regardless of their term of contract) prior to allowing that individual to commence activities in their organisation. 10. EMPLOYMENT CHECK 2: RIGHT TO WORK IN THE UK 10.1 Changes to the Immigration, Asylum and Nationality Act (2006), which came into effect on 29 February 2008, introduced a tough new criminal offence for employers who knowingly employ illegal migrant workers and a continuing responsibility for employers of migrant workers to check their ongoing entitlement to work in the UK. The Trust will take every effort to follow due process in accordance with the regulations No assumption will be made about a person s right to work or immigration status on the basis of their colour, race, nationality, ethnic or national origins, or the length of time they have been in the UK Three steps are taken to confirm a prospective employee has the right to work in the UK: (1) request right to work documents, (2) validate the documents, (3) copy and store A list of valid, current and original acceptable documentation confirming the right to work in the UK is as per NHS employers check standard on right to work checks (listed in Appendix 6). Guidance on checking the validity and authenticity of the documents can be found in Appendix 5. Information about the immigration system and different nationals right to work in the UK is in Appendix All documents provided are scanned/photocopied and retained on file to provide an ongoing defence against a penalty. For passports and travel documents, a copy is taken of the document s front cover and any page containing the holder s personal details and any page containing U.K. Government endorsements. Other documents are scanned/copied in their entirety. The person taking the copy signs and dates the copy to show it has been certified If, after carrying out these checks, it is established that the applicant is not, and will not after an acceptable time period such as within three weeks, be permitted to work in the UK, then the offer of employment is withdrawn. Continued employment is subject to the employee s right to work in the UK and this is stipulated in the terms and conditions of employment. The same principles apply for registration with the Trust staff bank The Trust regularly checks the UK Border Agency website for the latest information and may use the Employer Checking Service to gain information on candidates, workers and employees right to work in the UK. Page 8 of 47

9 11. CHECKING RIGHT TO WORK IN THE UK DURING EMPLOYMENT / BANK REGISTRATION 11.1 Those employees and bank workers with limited leave to remain in the UK may be requested to provide their right to work documentation annually for their central personnel file as per UK Visa and Immigration Agency requirements All employees and bank workers with some kind of limited leave in the UK will be entered onto the ESR with information on the end date of their visa. Human Resources will run bi-annual reports to check the status of employees who are subject to time-limited immigration status to ensure that action is taken as appropriate Should these permanent employees fail to provide the requested documentation their employment with the Trust may be at risk, as it is subject to right to work in the UK. Employees are informed of this in their terms and conditions of employment. Bank workers who are unable to provide documentation for their ongoing right to work in the UK will immediately be blocked from working further shifts with the Trust The Trust follows UK Visa and immigration Agency s requirements and processes, and is required to inform the Agency of any concerns, changes to employment or circumstances of those members of staff who the Trust has sponsored to work in the UK with a Certificate of Sponsorship. 12. EMPLOYMENT CHECKS 3: PROFESSIONAL CLINICAL REGISTRATION AND QUALIFICATIONS INCLUDING ALERT LETTERS 12.1 The purpose of registration and qualification checks is to ensure that a prospective and current employee is recognised by the appropriate regulatory body and that they have the right qualifications to do the job they are applying for All job offers given are provisional subject to satisfactory registration and qualification check, as appropriate. It is a contractual condition of employment that the healthcare professional has registration throughout their employment. In the event that an individual s registration is suspended, the Trust will treat this as an exclusion from work the work for which the registration is required and will manage accordingly Professional registration checks for health professionals are made with the relevant regulatory body. Where the Trust has checked and confirmed the registration with the relevant regulatory body it is not necessary to verify qualifications separately. Professional registration bodies are: 1. General Medical Council (GMC) 2. Nursing & Midwifery Council (NMC) 3. Health and Care Professions Council (HCPC) 4. General Pharmaceutical Council (GPhC) 5. General Dental Council (GDC) 6. General Optical Council (GOC) 7. General Osteopathic Council (GOSC) Page 9 of 47

10 8. General Chiropractic Council (GCC) 12.4 Before the Trust appoints any health professional it will check the following three areas: (1) that the applicant is registered to carry out the proposed role, (2) whether the registration is subject to any current restrictions that might affect the duties proposed, and (3) if the applicant has investigations against them about their fitness to practice that the regulatory body has a duty to disclose The Trust also checks Alert notices prior to recruiting an individual as per the Healthcare Professionals Alert Notices Directions When alert notices are issued Human Resources check the name against the ESR, Bank Staff Management System (BSMS), and the Online Recruitment Management System (ORMS) for possible matches with current permanent or temporary workers and prospective employees. HR keeps a central log on the current and withdrawn alert notices For non-clinical staff, if a qualification is essential for the position, the Trust requests original certificates and takes copies and checks that the details on certificates match those the prospective employee provides as part of their application. They are also required to contact the awarding body directly, where possible, to confirm the applicant s attendance, course details and grade awarded If the prospective employee has gained their qualification overseas, the Trust will check that the qualification exists, that it is equivalent to UK qualification and that prospective employee does, in fact, hold the qualification. These checks should be carried out directly by the awarding institution, where possible. Where that is not possible advice should be sought from the relevant country s UK embassy, consulate or high commission. 13. EMPLOYMENT CHECK 4: EMPLOYMENT HISTORY AND REFERENCE CHECK 13.1 Previous employment history is checked before an unconditional offer of employment is made to a prospective employee and once a provisional offer has been made. References and application forms are cross-checked as part of this process. References allow the Trust to check the accuracy of a prospective employee s previous employment and training history and they are used to confirm a recruitment decision. Prior to this, the recruiting manager should carefully explore any gaps in employment history with the applicant at interview and if concerned discuss their concerns with the recruitment team leader The primary purpose of a reference check is to obtain information about an applicant's employment or training history in order to ascertain whether or not a candidate is suitable for employment. The Trust has a duty of care to patients and staff to ensure that all reasonable checks are undertaken to identify any reason that, if known, would result in an individual not being employed or appointed to undertake any activity on its behalf The secondary purpose is to cross-reference information gained through the reference with the information provided by the candidate as part of their application. Any gaps or discrepancies in employment or training history should be further Page 10 of 47

11 investigated at interview so that the Trust can make an informed view as to the probity of the individual. Where there are gaps in employment or training history, the Trust will need to obtain suitable character references It is essential that managers do not solely rely on reference checks to confirm the suitability of the candidate for the new role, and that any decision to recruit is made based on all information gathered as part of the recruitment process All Employees/Bank Workers new to the NHS: Seek to validate a minimum of three years continuous employment and/or training including details of any gaps of service. Where an individual has been with one employer for three years or more, one confirmation of employment/training is sufficient, provided that all requested details have been confirmed by the previous employer. Where a prospective employee has changed employment frequently within the last three years, a sufficient number of confirmations must be obtained to cover the continuous three years history For employees/workers who are moving from another NHS organisation or another staff bank: Seek references from the candidate s current/last employer. Employers must assess whether any additional references are required to provide adequate assurances. Check discrepancies between information provided by the candidate as part of their application. If any discrepancies are found, this should be sensitively questioned with the candidate. Where a gap in employment history or training has been identified, the candidate will be requested to provide further information Doctors on rotational training programmes are considered as being in continuous employment throughout the full period of their training. The frequency and number of references required when seeking ongoing assurances of conduct for doctors during their period of training should always be proportionate to risk Internal candidates where an individual applies for a new position within the Trust, or is moving from the Trust bank, all efforts should be made to ensure risk is minimised or eliminated. Recruiting managers can contact Human Resources to verify that all details recorded on ESR are up to date, and that there is no relevant information on the individual s personnel record which should be considered before an appointment is made. Should the recruiting manager wish to seek additional information about the individual s suitability for the new role, information should be obtained from the line manager Other types of reference may be required depending on the individual s circumstances. This includes: Not working or been in full time education within the last three years preceding the application. In such cases, in addition to asking for a personal statement from the applicant, HR will request two references from someone of standing in their community who have known the applicant for the last three years. Page 11 of 47

12 Persons of standing may include a GP, lawyer, MP or minister of religion etc. The personal reference should clearly state the referee s name, job title, company, address and length of time the individual has been known to them. Been in full time education in the last three years. In this case, a reference should be obtained from the relevant school, college or university. Serviced in the armed forces of civil service during the previous three years. In this case, a reference should be obtained from the relevant service or department. The applicant has been self employed. Evidence should be obtained (for example HM Revenue 7 Customs, bankers, accountants, solicitors etc) to confirm dates of employment Overseas employment or training Prospective employees will need to give a reasonable account of any significant periods of the time spent overseas (for the purpose of these standards this should be where they have spent a continuous period of three months or more) The Trust also have a duty to staff and former employees under the Data Protection Act to ensure that when providing personal data within a reference, that this information is true, accurate, fair and can be justified. Any statement made in a reference which is untrue is likely to bring with it a claim for defamation. It is therefore Trust Policy to provide only factual information about an individual's employment with them in order to prevent any misunderstanding that this is intended as a negative reference. As a minimum, the following information should be obtained and verified: where the individual has been employed/studied dates employed/studied position held/course undertaken Recent or ongoing disciplinary action or referrals The request for references should be directed to the Human Resources. This is to avoid the applicant directing the employer to obtain information from somebody else who may provide inaccurate or fraudulent information Should the recruiting manager require additional information regarding the candidate s skills and experience due to the nature of the job being applied for, it is acceptable for him/her to directly contact the candidate s previous line manager to seek clarification Employers, particularly those outside the NHS, are increasingly taking a cautious approach when giving references and will only provide basic factual information to confirm periods of an individual's employment and position held while avoiding answering subjective questions on skills and personal qualities. It is therefore crucial for employers to use all the appropriate selection tools available to them as part of the recruitment process, such as the application process assessments/ Page 12 of 47

13 psychometric tests, and face to face interviews in order to assess a candidate s suitability for a particular role. 14. EMPLOYMENT CHECK 5: WORK HEALTH ASSESSMENTS 14.1 The purpose of a health assessment is to assess whether new employees: have a health condition or disability that requires adjustments in the workplace to enable them to undertake the post offered; or have a health condition or disability that requires restrictions to their role (e.g. Exposure Prone Procedures (EPP) workers with a blood-borne virus) All checks must take into account the requirements of the Disability Discrimination Act 1995 (DDA) and reasonable adjustments must be made to ensure that people can work in the NHS regardless of physical impairment or learning disabilities All work health assessments must take into account the requirements of the disability provisions within the Equality Act 2010 and reasonable adjustments must be made to ensure that people can work in the NHS regardless of physical impairment or learning disabilities A health assessment must only be made once a job offer has been made. It must be clear to prospective employees that any offer of appointment is conditional pending the successful completion of pre-employment checks, including a health assessment Work health assessments are undertaken when a member of staff: takes up their first post with the Trust including any training, transfers to a new employer in the NHS or changes jobs, where this involves a significant change of duties The Trust no longer issues applicants with pre-employment health questionnaires (PEHQ) as part of the pre-employment checks (unless working in an exposure prone areas EPP). In their place the Trust invites prospective employees to indicate which of the following statements apply to them i.e. tick either statement A or B: A. I am not aware that I have a health condition or disability that might impair my ability to undertake effectively the duties of the position that I have been offered. B. I do have a health condition or disability that might affect my work and may require special adjustments to my work or my place of work. These two statements should be included as part of the letter issued by Human Resources outlining their conditional offer of appointment No applicant should be refused employment on health grounds unless: expert occupational medical advice has been sought the applicant has had the opportunity to discuss issues raised with an occupational health professional, or the employing manager has given full consideration to all of the facts. Page 13 of 47

14 15. EMPLOYMENT CHECK 6: CRIMINAL RECORD AND BARRING CHECKS 15.1 Criminal Records Check Criminal record and barring checks are designed to help prevent unsuitable people from entering the NHS workforce and gaining access to vulnerable groups. A criminal record check relates to data held about an individual s criminal history. In the majority of cases a check will include all criminal offences (including convictions, cautions, reprimands and warnings). It may also include traffic offences such as speeding and drink-driving Disclosure and Barring Service (DBS) The Disclosure and Barring Service provides criminal record and barring functions to help employers make safe recruitment decisions. The criminal record checking service allows employers to access the criminal record history of people working or seeking work in certain positions, especially those that involve working with vulnerable groups Who can we request a DBS checks for? Not all individuals being appointed into positions within the NHS are eligible for criminal record or barring checks. Employers must be clear when they may legally obtain a check as defined by the rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 and, in certain circumstances, the Police Act 1997 (Criminal Records) Regulations The need for a check and level of check is determined by the activities and the type of access to patients they will have as part of a particular role. See Appendix 10 for a grid of posts and the level of DBS check required. Having a criminal record does not automatically make candidates unsuitable for positions at the Trust. The Trust has a Policy Statement on the Recruitment of Ex- Offenders (Appendix 7) and decisions on the relevance of any convictions are made in jointly between Recruiting/Line Managers and Human Resources. Any failure to disclose convictions or cautions on any of the following application forms may result in an offer of employment being withdrawn. Where a DBS Disclosure shows convictions or cautions that were not declared at application, and the person has already commenced employment, disciplinary action up to and including dismissal may be taken Types of DBS checks and eligibility There are three levels of check currently available through the Disclosure and Barring Service (DBS). The three levels include: Standard check Enhanced check without barred list information Page 14 of 47

15 Enhanced with barred list information - where the position is eligible, and the Trust indicates the type of access to vulnerable groups, this will include: - an adults barred list check - a children s barred list check - an adults and children s barred list check For a more detailed explanation of the levels of DBS check required by staff group please refer to Appendix 8 For a definition of regulated activity and eligibility against the barred list please refer to Appendix When should a criminal record check be requested? Where employers are entitled to request a DBS check, it is common to undertake checks once a provisional offer of appointment has been made. Any offer of appointment and/or contract of employment are conditional on satisfactory employment checks being carried out and verified, including undertaking an appropriate DBS check. DBS disclosure certificates carry no formal period of validity. Employers may therefore wish to consider undertaking periodic checks during employment Applicant self-disclosure (Model declaration forms) The Trust request that applicants complete a self-declaration form where this can be justified in terms of the role being offered. A self-declaration relies on the honesty of the individual to provide complete and accurate information. For reasons of transparency, the Trust should make clear to applicants that in completing and signing the self-declaration form, they are giving their consent for the information provided to be verified by obtaining an appropriate criminal record check. Where the position is listed as exempt under the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975, it is essential that you make sure the applicant is fully aware that you are entitled to seek information about both spent and unspent convictions and that any information disclosed will be verified by obtain a standard or enhanced DBS check. The Trust uses Model Declaration form B for the purpose of obtaining unspent convictions only and Model Declaration form A for the purpose of obtaining spent and unspent convictions Obtaining overseas criminal record checks The Security Industry Authority (SIA) recommend that employers should request a certificate of good conduct or overseas criminal record check where foreign nationals or UK applicants have disclosed that they have spent a cumulative period of six months or more abroad during the last five years. Currently, the DBS cannot access criminal records held overseas. However, in a small number of cases, overseas criminal records are also held on the Police Page 15 of 47

16 National Computer (PNC) and these would be revealed as part of a criminal record check. It is important that employers obtain overseas criminal record information as early as possible and additional time is factored into recruitment processes to avoid any unnecessary delays in making the appointment. Where the position meets the criteria for a criminal records check, even if applicants claims that they have never lived in the UK before, a check should still be obtained, in addition to the individual s overseas criminal records Portability The DBS define portability as meaning the re-use of a disclosure obtained for a position in one organisation and later used for another organisation. Information included as part of a disclosure certificate has no term of validity and it only provides information in relation to what is known about the individual up to the point of its issue. The Trust may accept a previously issued disclosure, but must have robust recruitment processes in place to make an informed judgement about whether to accept an existing disclosure rather than requiring a new check. Some of the key factors that need to be considered are: the possibility that the applicant's criminal record or other relevant information may have changed since its original issue. It is important to note that criminal record checks only ever provide a snap-shot in time and will not cover any investigations, court proceedings/charges, or surveillance in process or issued on, or after, the date the DBS certificate was issued any additional information provided by the Chief of Police, will have been issued where it was deemed relevant to the position for which the criminal record check was originally applied for, and therefore no assumption should be made that no other intelligence would be disclosed for a different position the information revealed was based on the identity of the applicant, which was validated by another registered body at that point in time. Therefore, employers should ensure that they verify details on the certificate match those of the applicant and other documentary evidence provided as part of the recruitment process. Where accepting pre-disclosed information, an employer must be satisfied that they can evidence that a check has been done. This can be done in a number of ways including: Electronic transfer of data Hard copy of previously issued certificate Verification by previous employer via confirmation of employment When receiving pre-disclosed information the Trust must be satisfied that the information can authenticated and is genuine. Page 16 of 47

17 Where the new position requires a different level of clearance i.e. they are moving into regulated activity for the first time, or where they were previously working with a different vulnerable group, then a new DBS check must always be undertaken. The Trust will only accept original copies of the DBS certificate. Photocopies should not be accepted Starting work prior to receipt of a Criminal Record Check Staff that are new to the NHS Where individuals take up appointment with the Trust for the first time, we will issue a conditional offer of employment before receiving the result of a DBS check however, it is important to emphasise that the Trust will be committing an offence if we knowingly permit a person to engage in regulated activity from which the person is barred. In these circumstances the Trust requires managers to complete a DBS risk assessment form please see Appendix 9. The individual will also be committing a criminal offence where they engage in a regulated activity for which they are barred. It is therefore strongly recommended that individuals are not permitted to undertake any form of regulated activity, until the outcome of any barred list check is known. Employers may, in exceptional circumstances, make a risk-based decision to appoint applicants while they are awaiting the outcomes of a DBS check for the purpose of undertaking induction training; or to undertake other duties which would not include them engaging in any form of regulated activity. In any such cases, the recruiting manager should ensure: an appropriate DBS check has been applied for; and safeguards are put in place to manage that individual i.e. supervision, restricted duties and access to patients, until the disclosure has been obtained Assessing information in a positive disclosure Having a criminal record does not automatically mean that an individual cannot work for the Trust. The Trust must make a fair, non-discriminatory assessment based on the individual s skills and experience and suitability for the post. The decision always rests with the Trust as to whether to allow a person whose criminal record check reveals a conviction, caution or other information to be appointed into a position. The information obtained should be carefully considered in the light of the circumstances and judged on a case-by-case basis. Where the disclosure indicates that the DBS has made a barring decision against one or both of the barred lists, it is illegal for the Trust to allow them to engage in a regulated activity from which they are barred. It is also a criminal offence for a barred person to apply for work or to engage in a regulated activity. A criminal record disclosure will only reveal the basic facts about criminal offences, warning and reprimands, such as the name and date of the offence and, if applicable, details of any sentences/charges. It will not put this into any context. Page 17 of 47

18 The Line Manager, supported by HR, should carefully consider the situation before offering any appointment to individuals who are: on probation (in a legal sense) under a suspended prison sentence released from prison on parole still under a conditional discharge subject to Terrorism Prevention and Investigation Measures. When considering disclosure information the Trust must be mindful of: any legal or regulatory requirements the seriousness of the offence certain specified offences, because of their nature will always be included in a DBS disclosure regardless as to whether they are spent or unspent, therefore employers will be required to assess relevancy to the post being applied for and evaluate the risk the length and type of sentence issued whether the applicant has a pattern of offending behaviour. If there are multiple offences, regardless of their seriousness or whether they are spent or unspent, these will always be included in a DBS disclosure. People who have a pattern of offending right up to the present date have clearly not put their offending behind them. Those people with gambling, drink or drugs related convictions in particular may remain a risk unless there is evidence of a clear break in the pattern of their offending the circumstances surrounding the offending behaviour and the explanation offered by the individual. An explanation of the circumstances surrounding an offence will often be plausible and reassuring for example, if the individual explains that, in fear and panic, they ended up assaulting someone who was threatening them, may not be as culpable as an individual who caused serious injury with intent Post-employment checks It is a contractual requirement that employees are to disclose criminal convictions acquired during employment. The disclosure should be made in confidence for the employer to consider the effect of the offence on the employee's post. Temporary workers are obliged to make similar disclosure. Existing staff may be subject to disciplinary action and possible dismissal if they knowingly fail to disclose relevant information in relation to their criminal record or barred list status. It is a criminal offence to knowingly allow an individual to continue to engage in a regulated activity when they are barred from that activity. It is also a criminal offence for that individual to apply for, or to engage in, regulated activity when are barred from undertaking that activity Existing staff changing jobs within the same organisation A new criminal record check is not normally required where an existing member of staff has had a DBS check (or CRB check if prior to 10 September 2012) and moves internally to a new job and stays in the same department (as a promotion) Page 18 of 47

19 or remains in the same specialty elsewhere in the organisation. The trigger for a new check is where: they have never had a criminal record check before and are moving to a position that now requires them to have a check the new position significantly changes their roles, responsibilities, involvement in regulated activity and level of contact with vulnerable groups and requires a higher level of check, or a check against one or both barred lists Easements Whilst the legislation does not explicitly refer to employers relying on checks completed by previous employers or other organisations, it can be argued that NHS trusts and foundation trusts all form part of the NHS. As such it is considered reasonable that NHS organisations co-operate to minimise the risk of employing a person that is barred from a regulated activity or has a criminal record that might result in a person being unsuitable to employ or engage in certain or any activities. Easements are relevant where certain staff groups operate either under education programmes that mean that they move from employer to employer frequently or employees that might otherwise work for more than one organisation at the same time, including through agencies, and therefore only one organisation need be responsible for obtaining relevant checks. The employing organisation should seek written assurances from that organisation that appropriate clearances have been obtained and that individual is not barred from engaging in a regulated activity. A number of specified easements have been put in place for certain highly mobile staff. This is because the frequency that they are required to move from position to position far outweighs the risk, so the trigger for criminal record checks to be carried out each and every time they change positions has been relaxed see further guidelines in the section below Doctors in training Doctors on educationally-approved rotational training are regarded as being in continuous employment during the full term of their training and are therefore required to have a criminal record check, as a minimum, once every three years, rather than each time they change rotation. HR will seek written / electronic assurances from the host/previous employer that appropriate clearances have been obtained within the last three years. Trusts may undertake criminal record checks more frequently, but any additional checks must be proportionate to risk. For example, where assurances cannot be obtained or where there is a specific concern about the individual s practice or criminal behaviour. Where it is highly likely that the individual will be working in regulated activity with both children and adults at an early stage in their training programme, it is strongly recommended that checks are made against both barred lists. Page 19 of 47